On March 27, 2001, Complainants Wisconsin
Association of
Professional Correctional Officers, Mary Bobiak, Neil Knapton and
Roger Luder, hereinafter the Complainants, filed a complaint with
the Wisconsin Employment Relations Commission wherein they alleged
that the Respondents had committed unfair labor practices under the
State Employment Labor Relations Act (SELRA) by denying individual
employees the right to present grievances through a representative
of their own choosing under Sec. 111.83(1), Stats. On May 2, 2001,
each of the Respondents filed a motion to dismiss the complaint for
failure to state a claim against the respective Respondent.

On May 22, 2001, Complainants filed responses to the
respective motions to dismiss, including a motion to amend the
complaint in response to Respondent Department of Employment
Relations' (DER) motion, and making a number of factual and legal
assertions in both responses.

By June 14, 2001, Respondent Wisconsin State Employees Union,
AFSCME Council 24, AFL-CIO (WSEU), filed a response renewing its
motion to dismiss for failure to state a claim and also making a
number of factual and legal assertions. By June 15, 2001,
Respondent DER filed a response renewing its motion to dismiss for
failure to state a claim and making a number of factual and legal
assertions.

Having considered the pleadings and arguments of the parties,
the Examiner makes and issues the following

3. Complainants' motion to amend the complaint to include
the allegations in paragraphs 8 and 9 of its response to Respondent
Department of Employment Relations' motion to dismiss is granted.

4. Complainants are ordered to make the complaint more
definite and certain, within fourteen (14) days of the date of this
order, by specifying in sufficient detail with regard to the
grievances they alleged were filed by or on behalf of the
individual complainants, when and with whom those grievances were
filed so as to enable Respondents to identify those grievances; by
making clear that they are alleging that the grievances were filed
pursuant to the

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Dec. No. 30167-A

individual complainants' rights under Sec. 111.83(1), Stats., or
pursuant to their contractual rights under the applicable
collective bargaining agreement, or both; and by specifying the
section(s) of SELRA that applies to labor organizations and which
it alleges Respondent WSEU has violated.

Dated at Madison, Wisconsin this 29th day of June, 2001.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

David
E. Shaw, Examiner

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Dec. No. 30167-A

DEPARTMENT OF EMPLOYMENT RELATIONS
(CORRECTIONS)

WISCONSIN STATE EMPLOYEES UNION, AFSCME COUNCIL
24, AFL-CIO

MEMORANDUM ACCOMPANYING ORDER
GRANTING MOTION TO

AMEND COMPLAINT, DENYING MOTIONS TO DISMISS, AND
REQUIRING

COMPLAINANTS TO MAKE COMPLAINT MORE DEFINITE
AND CERTAIN

Complainants filed a complaint with the Commission wherein
they alleged that the Department of Employment Relations (DER),
through the State's employing institution (Columbia Correctional
Institution) and the Wisconsin State Employees' Union, AFSCME
Council 24, AFL-CIO (WSEU), had violated Secs. 111.84(1)(a) and
(c), Stats., by denying the individual complainants their right to
present a grievance under Sec. 111.83(1), Stats.

DER subsequently filed a motion to dismiss for failure to
state a claim under SELRA. DER noted that the only allegation of
State action in the complaint was that the personnel manager at
Columbia Correctional Institution (CCI) had notified WSEU's
representative at the institution that Complainant Luder had filed
a grievance, which DER asserts is consistent with the State's
obligations under Sec. 111.83(1), Stats. UW Hospital & Clinics
Board, Dec. No. 29784-D (WERC, 11/00). DER further asserted that
the complaint contained no allegation that the State refused to
meet and confer with Luder or the employee on whose behalf he filed
a grievance.

Complainant filed a response to DER's motion to dismiss, or in
the alternative, a motion to amend the complaint. Complainants
asserted the following as facts in their response:

The initial grievance Complainant Luder filed in
September, 2000,
was ignored by Columbia Correctional Institution's ("CCI")
management except to notify the WSEU that a grievance had been
filed.

Complainant Luder filed another
grievance complaining that CCI
management failed and refused to discuss the other grievances
he filed. That grievance, too, was ignored by CCI management.

Complainants asserted that DER misinterprets U.W. Hospital and
Clinics Board, supra, in asserting that the State employer's only
obligation when someone other than a union representative files a
grievance, is to notify the union that a grievance has been filed.
What the Commission stated in that case was ". . . the statutory
opportunity for individual employees to meet directly with their
employer is separate and distinct from any such contractually
bargained opportunity. The statutory opportunity to meet directly
with the employer cannot be limited by a collective bargaining
agreement." Further, the Commission stated that while "a union
and employer have no obligation to bargain a contract which will
give individual employees the right to independently process
contractual grievances," where a union and employer do so bargain
"employees have the right to process grievances on their own or
with a representative of their own choosing. . ."

Complainants also moved to amend their complaint to assert the
following:

8. Once an individual is given "the right to
independently
process contractual grievances," as in this instance, 1/ the
employer is obligated to engage in the grievance process, and
the "agency representative will schedule a hearing. . ."

9. The employer failed and
refused to abide by the collective
bargaining agreement and the statutory right of Complainants
to file and process grievances when it failed and refused to
schedule a hearing with Complainants pursuant to the grievance
procedure and its statutory obligation.

. . .

_____________

1/ Article IV, 4/1/2 "The grievance
shall be presented to
the designated supervisor involved in quadruplicate (or mutually
agreed upon forms furnished by the Employer to the Union and any
prospective grievant) and signed and dated by the
employee(s)
and/or Union representative," 4/2/6 "Step Two: . . .Within twenty-one (21) calendar days of
receipt of the written grievance, the
designated agency representative(s) will schedule a hearing with
the employe(s) and his/her representative(s) and a representative
of Couuncil 24. . ." (Emphasis mine.) 2000-2001 Agreement between
the State of Wisconsin and AFSCME Council 24 Wisconsin State
Employees Union.

DER responded that Complainants have not alleged that any of
them requested a meeting with the State employer. The only
allegation is that grievances were filed; however, the right under
Sec. 111.83(1), Stats., does not become operative until there is a
request for a hearing on the "grievance". DER questions how the
employer is to know the grievance is a

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Dec. No. 30167-A

statutory "grievance" where, as here, it is filed on a contractual
grievance form. Complainant's response only alleges that two
grievances were filed ­ one in September, 2000 with Luder as the
grievant and Bobiak as the employee's representative; and one in
November, 2000, by Luder alleging a violation of the bargaining
agreement. Both were filed on a standard contractual grievance
form. The September grievance was processed as a contractual
grievance, and the November grievance specifically alleges a
violation of contract provisions and under "relief sought", states
"Read the contract. . .answer this Grievance."

Although Complainants do not allege that the grievances were
filed under the bargaining agreement, it is clear that Complainants
filed contractual grievances on contractual grievance forms, which
do not constitute statutory grievances. The two are separate and
distinct and separate filings are required. The filing of one does
not constitute a filing of the other and they are not
interchangeable. U.W. Hospital and Clinics Board, supra. There is
no proof that Complainants filed a statutory grievance. If they
are contractual grievances, there has been no violation. The
September grievance has been appealed to arbitration and there is
no allegation that Complainants have complied with the contractual
process so as to entitle them to a hearing on the November
grievance. If it is a contractual grievance, the Union, not Luder,
is the party who controls the grievance and the scheduling of any
hearing on it. As it is clear from the pleadings that Complainants
did not notify the Union under Sec. 4/1/3 of the bargaining
agreement, the employer was fully warranted in not meeting with the
grievants, as in that circumstance, "no further discussion (may) be
had on the matter until the appropriate Union representative has
been given notice and an opportunity to be present."

The contractual language cited by Complainants in footnote 1
of their response has no bearing on any right under Sec. 111.83(1),
Stats., as it applies to the contractual grievance procedure. The
phrase "and his/her representative(s) and a representative of
Council 24. . ." in sec. 4/2/9 does not refer to a statutory
"grievance" and does not reference the same "representative" as
found in Sec. 111.83(1), Stats.; rather, it refers to a
"representative" as defined in the bargaining agreement, e.g., a
union steward. Luder would not be a "representative" under the
agreement unless he was a designated Union representative, and if
he was, it would be a contractual grievance, not a statutory
grievance. Even if Complainants are now alleging that the two
grievances also triggered the contractual grievance process, they
have failed to allege necessary conditions of a "pre-filing" under
secs. 4/2/1 ­ 4/2/4 and filing at the first step within 30 days
from when the grievant first became aware. Sec. 4/2/7.

WSEU also filed a motion to dismiss for failure to state a
claim under SELRA. In support of its motion, WSEU noted that the
complaint alleged that Luder, as a Wisconsin Association of
Professional Correctional Officers (WAPCO) representative, filed
two grievances and then was advised he could not do so by WSEU
Local 3394 President Bergland. In that regard, WSEU asserted that
Luder was not a designated shift steward pursuant to sec. 4/6/6 of
the collective bargaining agreement. WSEU also asserted that the
complaint alleged

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Dec. No. 30167-A

that Bergland advised an individual grievant (Complainant Knapton)
that if he wanted to file a union grievance, he had to submit the
grievance with the designated union steward's signature. The right
to present grievances under Sec. 111.83(1), Stats., is separate and
distinct from grievance procedural rights afforded under the
collective bargaining agreement. Complainants' rights under Sec.
111.83(1), Stats., do not give them access to the grievance
procedures and arbitration provisions in the agreement. State of
Wisconsin, Dec. No. 28938-C (WERC, 5/99); Milwaukee Board of School
Directors, Dec. No. 11280-B (WERC, 12/72). Here, Complainants have
attempted to use the contractual grievance procedure in the
agreement between the State and WSEU. Such a grievance must be
processed by WSEU and must be signed by a designated union steward
under sec. 4/6/6 of the agreement. As acknowledged in the
complaint, Luder had been removed as a WSEU shift steward on
September 13, 2000 and was therefore not a designated union
representative when he attempted to file grievances under the
collective bargaining agreement.

Complainants responded to WSEU's motion to dismiss asserting
that even if the statutory opportunity to bring a grievance is
separate and distinct from the contractual opportunity to bring a
grievance, it does not mean that an employee or his chosen
representative cannot follow the contractual procedure in the
absence of an established procedure for statutory grievances. Sec.
111.83(1), Stats., does not state a procedure defining a "meet and
confer" session. Using the same method to present grievances as in
the agreement, only with a different signature, is practical.
While an employee may not have access to the full contractual
procedure when presenting a statutory grievance, the statute
implies that contractual matters may be discussed, as it requires
that any adjustment reached be consistent with the bargained
conditions of employment. Therefore, advising a member that his
grievance cannot be heard unless it is submitted through the Union
clearly is interference and coercion with the employee's rights.

Further, while U.W. Hospitals and Clinics Board, supra, held
that statutory and contractual opportunities to present grievances
are separate and distinct and that there is no obligation to give
employees individual access to the contractual grievance procedure,
the bargaining agreement in this case does give individual
employees access to the grievance procedure. Contrary to the
assertion that any grievance must be signed by a union steward
under sec. 4/6/6, that provision merely requires the Union to
provide the employer with a list of stewards, who then may file
grievances under sec. 4/7/1. Section 4/1/2 permits individual
employees to bring grievances to the employer without notifying the
Union in advance, and is not restricted to situations where that
employee is the aggrieved party, i.e., the employee who presents
the grievance can act as the chosen representative of the aggrieved
employee. Section 4/1/3 merely requires that the Union be notified
and have the opportunity to be present, but does not give the Union
control of the grievance. The existence of "grievance
representatives" under 4/6/6 may not be interpreted to make secs.
4/1/2 and 4/1/3 ineffective.

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Dec. No. 30167-A

Complainants conclude that it would be impractical, under
either the statutory or contractual opportunity to present a
grievance, to demand the use of a completely separate procedure
when an individual or his chosen representative presents a
grievance. Labor relations depend upon speed and regularity in
processing employee complaints and that is the basis for adopting
a grievance procedure. Especially at the lower levels, this
justifies having a common procedure in order to avoid having three
different meetings on the same issue, i.e., under the statute and
under a sec. 4/1/3 grievance and a sec. 4/7/1 grievance. To
instruct an employee to choose only the method that makes the Union
the chosen representative when an employee is entitled to select
any of those methods, clearly violates Secs. 111.84(1)(a) and (b),
Stats.

WSEU responded that Complainants attempt to construct a
contractual basis for individual access to the Union grievance
procedure by misinterpreting secs. 4/6/6 and 4/7/1 of the
bargaining agreement and ignoring Section 2: Grievance Steps (Secs.
4/2/1 ­ 7). While Complainants argue a designated grievance
representative is not necessary under secs. 4/1/2 and 4/1/3, those
provisions must be read in conjunction with the next section.
Under sec. 4/2/1, Union representatives must initiate contact with
the supervisor at the pre-filing step, and the grievance cannot
proceed under sec. 4/2/2 until the Union has made such a contact
with the supervisor. Of necessity, Complainants ignore those
provisions in arguing that individuals or "non-designated"
representatives can "hijack" the Union's grievance procedure. As
it is undisputed that Luder is not a designated union
representative, and that no designated representative was involved
on behalf of the other Complainants, the motion to dismiss should
be granted.

DISCUSSION

The complaint alleges that the State employer and WSEU
violated Secs. 111.84(1)(a), (b) and (c), of the State Employment
Labor Relations Act (SELRA). 1/ Pursuant to

_________

1/ Complainants do not cite the appropriate
provisions of
SELRA with regard to Respondent WSEU's alleged violations and have
been ordered to clarify their complaint in that regard.

_________

Sec. 111.84(4), Stats., Sec. 111.07, Stats., governs the procedures
by which unfair labor practice complaints are to be heard. Chapter
227 of the Wisconsin Statutes states the general framework for
administrative agency proceedings.

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Dec. No. 30167-A

The Commission is an "agency" under Sec. 227.01(1), Stats.,
thus making this proceeding an "agency proceeding." Sec.
227.01(3), Stats., defines a "contested case." To be a contested
case under Sec. 227.01(3), Stats., the proceeding must involve a
controverted, substantial interest which will be determined or
adversely affected by a decision or order after a hearing required
by law. In this case, the Complainants are seeking an order
requiring the State employer to meet with the individuals and their
chosen representative with regard to their grievances and without
Union input or involvement, which both DER and WSEU oppose in this
case. The Complainants' interest is "substantial" and is
"controverted by another party." As Sec. 111.07(2)(a), Stats.,
mandates hearing of alleged unfair labor practices, this matter
constitutes a "contested case" as defined by Sec. 227.01(3), Stats.

Dismissing a contested case prior to hearing is appropriate
only in limited circumstances:

Dismissal prior to evidentiary hearing would be proper if based
on lack of jurisdiction, lack of timeliness and in certain other
cases. . .(I)t would be a rare case where circumstances would
permit dismissal of the proceedings prior to the conclusion of a
meaningful evidentiary hearing on other than jurisdictional grounds
or failure of the complaint to state a cause of action.

68 OAG 31, 34 (1979).

In that regard, the Commission has held that:

Because of the drastic consequences of denying an evidentiary
hearing, on a motion to dismiss the complaint must be liberally
construed in favor of the complainant and the motion should be
granted only if under no interpretation of the facts alleged would
the complainant be entitled to relief.

Unified School District No. 1 of Racine
County, Wisconsin, Dec.
No. 15915-B (Hoornstra with final authority for WERC, 12/77), at 3;
Racine Unified School District, Dec. No. 27982-B (WERC, 6/94).

While those cases involved the Municipal Employment Relations Act
(MERA), Sec. 111.07 Stats. governs the procedures in prohibited
practice and unfair labor practice cases under both MERA and SELRA,
respectively. Thus, the Commission's rationale in its decisions in
those cases is applicable in cases under SELRA as well.

In this case, Complainants have alleged that they have both a
statutory right under Sec. 111.83(1), Stats., and a contractual
right under the applicable bargaining agreement, to present
grievances to their employer by themselves as individual employees,
or by their chosen representative. They allege that grievances
were filed by certain individuals, and appear to

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Dec. No. 30167-A

allege that the grievances were submitted pursuant to both their
statutory right and a contractual right to do so. They further
allege WSEU has interfered with their rights in those regards in
advising Complainants they must resubmit the grievance through a
designated Union grievance representative. Complainants allege
that the State employer failed and refused to schedule a hearing
with Complainants on their grievances, thereby violating their
rights under the statute and under the collective bargaining
agreement in violation of Secs. 111.84(1)(a) and (b), Stats. If
proved, those allegations would establish violations of
Complainant's rights under SELRA. U.W. Hospitals and Clinics
Board, supra.

In support of its motion to dismiss, DER has alleged that the
grievances Complainants filed were filed as "contractual"
grievances under the contractual procedure, and not as statutory
grievances, and that the September 23, 2000 grievance was processed
under the contractual grievance procedure and is presently pending
arbitration. Those are factual allegations that are not contained
in the complaint. DER has asserted that Complainants have not
alleged that they have complied with the procedural requirements of
the contractual grievance procedure so as to entitle them to a
"hearing" with the employer on the grievance. Being required to
liberally construe the allegations in the complaint, such an
allegation may be inferred from the claim that they have a
contractual, as well as a statutory, right to a hearing on their
grievances. Whether Complainants have complied with such
requirements as there are, is a mixed question of law and fact.

DER also asserted that the grievances cannot be filed as both
contractual and statutory grievances in a single filing. That also
is a mixed question of law and fact. DER asserted that
Complainants do not allege that they requested a hearing with the
employer, and that absent such a request, there can be no refusal
by the employer, and thus no violation of their rights under Sec.
111.83(1), Stats. Whether the filing of the grievances constitutes
a request for a meeting or a hearing under Sec. 111.83(1), Stats.,
is again a mixed question of law and fact.

In support of its motion to dismiss, WSEU asserts that
individuals do not have access to the contractual grievance
procedure without the Union. Again, this is a mixed question of
law and fact.

Given that the amended complaint states possible causes of
action against both Respondents, and that there are issues of both
fact and law raised in the amended complaint and the motions to
dismiss, hearing in the matter is required and the motions to
dismiss have been denied. However, while the complaint alleges
that Complainants filed grievances, it fails to provide any
specificity as to when and with whom, and there has been confusion
as to which grievances the complaint references. Complainants
therefore have been directed to make their

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Dec. No. 30167-A

complaint more definite and certain in those regards, as well as to
clarify whether they are asserting that the grievances were filed
under the statute, or under the collective bargaining agreement, or
both.